Group identifies dangerous patents and tries to cut them down to size.

Despite the rise in the number of patent trolls launching lawsuits affecting open source software, there are some glimmers of hope. The America Invents Act that was signed into law in September 2011 has provided new ways to prevent the issuance of over-broad software patents that could fuel future lawsuits.

In a session at LinuxCon today, Linux Defenders director Andrea Casillas explained how the group is using rights granted by the new law to fight patent applications. A project of the Open Invention Network, Software Freedom Law Center, and Linux Foundation, Linux Defenders examines the 6,000 new patent applications published each week, attempting to identify those that are potentially threatening to Linux and open source. Then, the group looks for prior art that would invalidate at least some of the claims in the patents.

The next step is working with Linux technologists to file defensive publications, which are not patents themselves but describe an invention and place it in the public record, preventing new patents from being granted that cover the same technology. These are typically two- to three-page descriptions of the technology, which the US Patent and Trademark Office (USPTO) examiners can read when conducting their review of prior art that might invalidate or limit the scope of a new patent application. Linux Defenders has filed about 200 of these defensive publications.

"We'll work with authors or inventors or developers to take submissions, edit them, and work hand in hand with them to make these publications more effective," Casillas said, urging the Linux community to help the group identify dangerous patents and find prior art.

Defensive publications are an old strategy, but it's become more accessible to the public because of the America Invents Act, Casillas explained. "This is the first time examiners have welcomed the public interaction," she said. "Any individual can electronically submit up to three pieces of prior art at no cost per application."

Linux Defenders has filed defensive publications related to patent applications from Microsoft, Apple, and others. Generally, Casillas said defensive publications aren't going to force a company to abandon a patent application. Rather, they might force the company to limit the scope of the patent application's claims.

When asked if Linux Defenders could name examples of patent applications that were limited because of this process, Casillas and her colleagues said they're still working on a method of measuring its effectiveness. Within 6 to 9 months, they expect to implement a tool that lets them track when patent examiners use the defensive publications in the patent review process.

Linux Defenders also targets patents that have already been issued, but Casillas noted that the legal standard for invalidating patents after they're awarded is very high.

One patent lawsuit “could make Red Hat go away”

Red Hat has criticized patent trolls and taken many steps to protect itself and its customers from them. Callaway said the threat can't be understated. "I do not overestimate this. Red Hat is not a small company in our industry, in open source. We're possibly the biggest. One good loss at trial on a serious set of patents could make Red Hat go away. It would be gone. That's the seriousness of patents and that's how chilling they are on our industry," he said.

In all likelihood, Red Hat isn't going anywhere. The company has a good track record defending itself and its customers in court against patent trolls. It indemnifies customers against lawsuits as part of its software subscription program, and it has built up a portfolio of defensive patents.

While paid subscriptions to Red Hat Enterprise Linux entitle customers to extra protection, Red Hat is also working on making sure Fedora—which costs users nothing—is protected from legal trouble. The company does that by analyzing all the code and making sure every piece is licensed properly, sometimes removing and replacing problematic code. This has negative consequences for the software. "We have this problem a lot in Fedora. Patents keep us from doing the things that we want to do," Callaway said.

In a recent case involving Rackspace and Red Hat, a company called Uniloc tried to get money from Rackspace for using Red Hat's Linux-based servers. Uniloc's case was thrown out, with the judge saying its patent claim is invalid because it describes a relatively simple math operation.

But defending those cases costs money, and even Red Hat has occasionally paid money to patent trolls to settle cases without going to trial.

Callaway expressed frustration about over-broad patents. Some patents are "so vague they could mean anything," he said. "They could be applied to almost anything, and the patent trolls are betting on that, that you won't fight it."

Helping patent examiners identify bad patents

Those over-broad patents, again, are what Linux Defenders is trying to stop. Vague patents often get approved in part because patent examiners spend no more than 20 hours on each application, Casillas said.

The amount of time is "pretty staggering considering how long the process takes and how important the issuance of a patent can be," she said. The 20 hours "includes going through the application, making sure it complies with formatting, your basic legal requirements, but also determining the scope of the invention."

The examiner spends about seven to eight hours searching for prior art, whether in the form of patents or other publicly available descriptions of technology, she said.

By submitting defensive publications, complete with tags making them more easily discoverable by patent examiners, Linux Defenders hopes to make the USPTO more effective.

"We're not adding to their increasing workload," Casillas said. "We're helping them with these relevant publications."

"This is the first time examiners have welcomed the public interaction," she said. "Any individual can electronically submit up to three pieces of prior art at no cost per application."

I see future patent litigation coming up and someone saying "Hey, we opened it up to the public and no one came up with any prior art, so that means there isn't any!" Obviously that shouldn't affect anything (if there really is prior art), but hopefully this doesn't cause patent examiners to slacken off even more...

The Supreme Court could invalidate Software Patents enmass and the world economy would just keep moving along, probably at a faster pace. Or congress could get off it's ass and do the same thing and remove software from the patentable list.

Either way, it would be a win for everyone, but the patent trolls. And don't bother with responses about code needing some protections, copyright is applicable in cases where that is required.

That's an absurdly best-case scenario. The productivity requirements at the USPTO generally necessitate no more than a couple hours of searching per application. Experienced examiners in the computer engineering technologies are allocated a total of eight to twelve hours to review the often several hundred pages of filings, analyze the 20+ claims, perform the search and write a typically 30 page response, as well as fill out a number of varied forms using several different software packages. A full day of searching is a luxury only a trainee can afford.

That's an absurdly best-case scenario. The productivity requirements at the USPTO generally necessitate no more than a couple hours of searching per application. Experienced examiners in the computer engineering technologies are allocated a total of eight to twelve hours to review the often several hundred pages of filings, analyze the 20+ claims, perform the search and write a typically 30 page response, as well as fill out a number of varied forms using several different software packages. A full day of searching is a luxury only a trainee can afford.

Amazing that billion dollar lawsuits can rest on this sort of activity. I can't imagine a more broken system. But I care less about the lawsuits than the idea that people who want to do something in the world of software can't because someone filed some papers.

It more and more seems to me the only way to really get software patents reformed is to play their game: Every single patent troll that destroys millions of millions of money and bogs down innovation is a boon. Even better if they go after the giants of the businesses and cost them lots of money. And best of all would be a war between those large companies trying to find out who can destroy each others business more effectively with bogus and overly broad patents.

Because if not, nothing is ever going to change. Sure MS, Apple or Google may loose a few million here and there to patent trolls and for legal fees, but consider what they get in return: They can basically destroy every new competition and innovator in their fields. Just sue them over some overly broad patents and that's it. Oh sure they can defend themselves and theoretically win, but that costs lots of money and scares investors off, which together pretty much guarantees that they can then cheaply buy the rest of the company.

Sure they all claim to be for patent reform, but if you look at their actions and not words they are all the same: Very much in favor of this system - and why not? They're the biggest profiteers.

It's a bad sign, when it proves necessary for volunteers from the public sphere to step in, and to help the government attempt to fulfil its official duties properly, by doing a crucial part of its job for them.

The Supreme Court could invalidate Software Patents enmass and the world economy would just keep moving along, probably at a faster pace. Or congress could get off it's ass and do the same thing and remove software from the patentable list.

Either way, it would be a win for everyone, but the patent trolls. And don't bother with responses about code needing some protections, copyright is applicable in cases where that is required.

Can we just say it will be everyone? Lumping patent trolls with the rest of humanity, well that's quite insulting to the rest of us humans. Back to serious business, patent trolls are rent seekers which are parasites that only consume and destroy wealth, they do not create it. The patent system stopped promoting progress in the arts and sciences long ago. I would consider the status quo to be constitutionally defunct because of this. I don't know if there is any legal definition or precedent to declare the USPTO as operating outside of its constitutional mandate, but I think most of us can smell that the current state of affairs is quite rotten.

If you want to jump in and contribute, then you should take a look at Stack Exchange's patents site: http://patents.stackexchange.com/. It was created specifically at the USPTO's request so that the general public can participate in finding and reporting prior art. Patent examiners do visit that site and consider prior art reported on it while examining patent applications.

The Supreme Court could invalidate Software Patents enmass and the world economy would just keep moving along, probably at a faster pace. Or congress could get off it's ass and do the same thing and remove software from the patentable list.

Either way, it would be a win for everyone, but the patent trolls. And don't bother with responses about code needing some protections, copyright is applicable in cases where that is required.

Supposedly they were made invalid, or maybe that was for business method patents. The bar should be higher but the problem is, it only works in court - not at the source.

I mean, you can't expect the USPATO to rumage through 4 million patents and then retroactively kill them! That would be too easy.

Amazing that billion dollar lawsuits can rest on this sort of activity. I can't imagine a more broken system.

I'm not genuinely sure which is more dysfunctional, but I have to admit, "our health care system" and "our copyright setup" both instantly sprang to mind as possible candidates. :-/

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But I care less about the lawsuits than the idea that people who want to do something in the world of software can't because someone filed some papers.

If software patents didn't exist at all, I worry that we'd be trading one problem for another... Right now, it's people/companies not being able to sell a creation due to patents held by companies with more legal firepower -- but we could end up instead with the small business or individual just starting to sell their truly innovative creation only to have a big company snatch it up and using its resources to quickly give it shinier packaging & sell it off before the folks that did the work can get more than a few clients.

Maybe the real problem we're looking at isn't truly that of patent trolls, abusive use of patents, or the equivalent for the copyright realm, but large/powerful businesses screwing over citizens in any way they can with the effective blessing of our politicians. It could be that until we find some way to get that root issue under control, our efforts in every other realm will only result in trading one set of problems for another.

Amazing that billion dollar lawsuits can rest on this sort of activity. I can't imagine a more broken system.

I'm not genuinely sure which is more dysfunctional, but I have to admit, "our health care system" and "our copyright setup" both instantly sprang to mind as possible candidates. :-/

Quote:

But I care less about the lawsuits than the idea that people who want to do something in the world of software can't because someone filed some papers.

If software patents didn't exist at all, I worry that we'd be trading one problem for another... Right now, it's people/companies not being able to sell a creation due to patents held by companies with more legal firepower -- but we could end up instead with the small business or individual just starting to sell their truly innovative creation only to have a big company snatch it up and using its resources to quickly give it shinier packaging & sell it off before the folks that did the work can get more than a few clients.

Maybe the real problem we're looking at isn't truly that of patent trolls, abusive use of patents, or the equivalent for the copyright realm, but large/powerful businesses screwing over citizens in any way they can with the effective blessing of our politicians. It could be that until we find some way to get that root issue under control, our efforts in every other realm will only result in trading one set of problems for another.

I have considered that alternative, and of course a copyright wouldn't protect anyone because the beautiful thing about code is that there are many ways to write the selfsame logic.

What I have noticed, however, is that isn't probably as big a risk as it may seem at first thought. Software is complex and often new ideas, especially the really interesting ones, require a certain passion to drive them and to persist through the challenges that would derail fickle teams and their budgets. The big companies and their paid employees roving from project to project rarely have that passion. Sure, some of the really big ideas that have a certain momentum to them anyway because the structure of things as they are almost require it (think eyes in multicellular organisms having developed independently many times) may be copied. But then maybe we'd be lucky and there would be a sort of competition and the consumer would win. Weelll, we can hope, right?

But I may be wrong or overstating it. We could spawn a new sort of beast to replace the patent trolls. Idea stealing leviathans. I'm trying to think of a biological corollary, but I can't.

Amazing that billion dollar lawsuits can rest on this sort of activity. I can't imagine a more broken system.

I'm not genuinely sure which is more dysfunctional, but I have to admit, "our health care system" and "our copyright setup" both instantly sprang to mind as possible candidates. :-/

Quote:

But I care less about the lawsuits than the idea that people who want to do something in the world of software can't because someone filed some papers.

If software patents didn't exist at all, I worry that we'd be trading one problem for another... Right now, it's people/companies not being able to sell a creation due to patents held by companies with more legal firepower -- but we could end up instead with the small business or individual just starting to sell their truly innovative creation only to have a big company snatch it up and using its resources to quickly give it shinier packaging & sell it off before the folks that did the work can get more than a few clients.

You need not worry. An example of a place where software cannot be patented already exists: it's called the European Union.

Software patents do *not* exist in the EU. They always have been invalid and although there are pressures from some parts of the industry to allow them in the parliamentary have done a good job of keeping them at bay.

The EU does not seem to suffer any disadvantage in IT because of it.

The main reason why software patents are not eradicated in the US is mainly the inertia of the political system: maintaining the statu quo always feels more comfortable than reconsidering an old decision even in the face of blatant problems. The word "reform" when used in conjunction with "patent system" is a clear example of this issue: the US patent system does not need a reform, it needs a complete scientific reevaluation of its purpose and efficiency.

Boring, complex, important things like effective patent law should be mostly what the government is about. These issues always seem to get shouted out by the flavor-of-the-day hot button topics that score political points. Maybe instead of conducting trench warfare over things like obamacare and gay marriage, a few senators could sneak out for a bit and take care of this.

It's a bad sign, when it proves necessary for volunteers from the public sphere to step in, and to help the government attempt to fulfil its official duties properly, by doing a crucial part of its job for them.

Patent offices are always going to be a relatively coarse filter at best. For this reason, patent systems deliberately allow for third party observations (i.e. prior art submitted by the public) and have done for a long time. The problem is that there's no great incentive for commercial companies to submit prior art and the average member of the public isn't going to care. It really takes exactly what's described in the article for third party observations to be effective.

Given the sheer amount of possible prior art out there for any given patent, there's simply no way that an examiner can hope to look at more than a fraction of it. Searching is also very much subject to diminishing returns. You've checked the relevant parts of the online patent databases, you've had a quick look in the relevant trade journals or scientific literature (and that itself would be a pretty good search in the time available) - where do you go from there? Yes you could keep on searching and searching but spending days looking for that possible last needle in a very large haystack is just not time or cost effective. Sure the patent office could hire more examiners and give them more time per case but that costs politically unpopular money and even then there can be no guarantee of a completely comprehensive search. Remember, prior art can be anything at all that was made available to the public before the filing date of the patent.

There's a well known (in the UK and Europe anyway) piece of case law: Windsurfing International vs Tabur Marine in which the key piece of prior art was a prototype windsurfing board that some hobbyist had built for himself on holiday. With the best will in the world, that kind of prior art is extremely unlikely to be picked up by an examiner. This wasn't a small bit of case law either - it had a major effect on the way that inventive step (non-obviousness in the US) is considered by the courts.

If software patents didn't exist at all, I worry that we'd be trading one problem for another... Right now, it's people/companies not being able to sell a creation due to patents held by companies with more legal firepower -- but we could end up instead with the small business or individual just starting to sell their truly innovative creation only to have a big company snatch it up and using its resources to quickly give it shinier packaging & sell it off before the folks that did the work can get more than a few clients.

So we'd still end up with exactly the same problem (small innovators having problems to defend themselves against large established companies) - except that now the innovators would at least be able to get a product on the market and profit a while before other companies can come up with something, instead of them being sued before they can even sell a single product. And at the same time we'd get rid of patent trolls and all this other ridiculous stuff going on in the industry.

Yeah, well not really a compelling argument for software patents that.

That's an absurdly best-case scenario. The productivity requirements at the USPTO generally necessitate no more than a couple hours of searching per application. Experienced examiners in the computer engineering technologies are allocated a total of eight to twelve hours to review the often several hundred pages of filings, analyze the 20+ claims, perform the search and write a typically 30 page response, as well as fill out a number of varied forms using several different software packages. A full day of searching is a luxury only a trainee can afford.

Amazing that billion dollar lawsuits can rest on this sort of activity. I can't imagine a more broken system. But I care less about the lawsuits than the idea that people who want to do something in the world of software can't because someone filed some papers.

You forgot the assumption of validity this "thorough examination" grants the patent.

You need not worry. An example of a place where software cannot be patented already exists: it's called the European Union.

Software patents do *not* exist in the EU. They always have been invalid and although there are pressures from some parts of the industry to allow them in the parliamentary have done a good job of keeping them at bay.

That is patently false.

The European Patent Office has different criteria for "computer-implemented inventions" (as the EPO calls them) than does the USPTO. The USPTO prohibits the granting of patents of software per se (but this is overcome by instead directing the claims to a device that incorporates software, a method that could be implemented in software, or a storage medium storing particular software). The EPO prohibits the allows for inventions involving computer programs only if they solve a technical (not business) problem.

That's an absurdly best-case scenario. The productivity requirements at the USPTO generally necessitate no more than a couple hours of searching per application. Experienced examiners in the computer engineering technologies are allocated a total of eight to twelve hours to review the often several hundred pages of filings, analyze the 20+ claims, perform the search and write a typically 30 page response, as well as fill out a number of varied forms using several different software packages. A full day of searching is a luxury only a trainee can afford.

Amazing that billion dollar lawsuits can rest on this sort of activity. I can't imagine a more broken system. But I care less about the lawsuits than the idea that people who want to do something in the world of software can't because someone filed some papers.

Yeah, I think a decent guideline would be to add up the average number of man-hours spent litigating one patent infringement case (including the lawyers on both sides, the judge, the experts, etc) and allocate at least that many man-hours to reviewing each patent application, looking for prior art, etc before the patent is granted. The cost of all this should be paid for by the applicant, and you still have to pay even if your application is rejected (though they could give the applicant some opportunities to revise and narrow the scope, for an additional fee, before rejecting it outright). This would cut down drastically on frivolous, vague patent applications. Asking for a government-enforced monopoly right should not be undertaken lightly, nor should it be granted easily.

That's an absurdly best-case scenario. The productivity requirements at the USPTO generally necessitate no more than a couple hours of searching per application. Experienced examiners in the computer engineering technologies are allocated a total of eight to twelve hours to review the often several hundred pages of filings, analyze the 20+ claims, perform the search and write a typically 30 page response, as well as fill out a number of varied forms using several different software packages. A full day of searching is a luxury only a trainee can afford.

Amazing that billion dollar lawsuits can rest on this sort of activity. I can't imagine a more broken system. But I care less about the lawsuits than the idea that people who want to do something in the world of software can't because someone filed some papers.

Yeah, I think a decent guideline would be to add up the average number of man-hours spent litigating one patent infringement case (including the lawyers on both sides, the judge, the experts, etc) and allocate at least that many man-hours to reviewing each patent application, looking for prior art, etc before the patent is granted. The cost of all this should be paid for by the applicant, and you still have to pay even if your application is rejected (though they could give the applicant some opportunities to revise and narrow the scope, for an additional fee, before rejecting it outright). This would cut down drastically on frivolous, vague patent applications. Asking for a government-enforced monopoly right should not be undertaken lightly, nor should it be granted easily.

Unfortunatly, this would mean that small inventors would be unable to afford to file patents, and so the small inventors would get nothing, unless they sold their rights to a larger company...like a patent troll.

That's an absurdly best-case scenario. The productivity requirements at the USPTO generally necessitate no more than a couple hours of searching per application. Experienced examiners in the computer engineering technologies are allocated a total of eight to twelve hours to review the often several hundred pages of filings, analyze the 20+ claims, perform the search and write a typically 30 page response, as well as fill out a number of varied forms using several different software packages. A full day of searching is a luxury only a trainee can afford.

Well, you know they wouldn't have such a giant caseload if they hadn't made it clear that they would patent pretty much anything that crosses their desks, which invited a flood of "patently" obvious crap patent applications. The patent office has made it clear for years that their policy is "patent them all, and let the courts sort it out", a depressing paraphrase of the famous quote from the slaughter of the Cathars in the middle ages: "Kill them all, and let God sort them out".

Oddly and I'm surely totally coincidentally, that policy also leads to a massive flood of patent fees flooding into the patent office's coffers. The problem is one of their own making.

Well, you know they wouldn't have such a giant caseload if they hadn't made it clear that they would patent pretty much anything that crosses their desks, which invited a flood of "patently" obvious crap patent applications. The patent office has made it clear for years that their policy is "patent them all, and let the courts sort it out", a depressing paraphrase of the famous quote from the slaughter of the Cathars in the middle ages: "Kill them all, and let God sort them out".

Oddly and I'm surely totally coincidentally, that policy also leads to a massive flood of patent fees flooding into the patent office's coffers. The problem is one of their own making.

1) The amount of time allocated to examiners and the productivity requirements of the office as a whole are set (indirectly) by Congress by means of setting the fees per application and office action*. (The USPTO is a fee-funded organization.) The time/productivity requirements haven't changed in nearly half a century.

2) Over 95 percent of patent applications in the computer technology fields are rejected. I don't have current stats for other technologies, but as of a few years ago they were largely comparable.

3) From the point of view of society at large and Congress in particular, there is no problem. The system is functioning as intended and more or less as it has for hundreds of years.

[*The America Invent Act of 2011 transfers some fee setting authority to the USPTO, but no massive restructuring has occurred on that basis.]

Well, you know they wouldn't have such a giant caseload if they hadn't made it clear that they would patent pretty much anything that crosses their desks, which invited a flood of "patently" obvious crap patent applications. The patent office has made it clear for years that their policy is "patent them all, and let the courts sort it out", a depressing paraphrase of the famous quote from the slaughter of the Cathars in the middle ages: "Kill them all, and let God sort them out".

Oddly and I'm surely totally coincidentally, that policy also leads to a massive flood of patent fees flooding into the patent office's coffers. The problem is one of their own making.

1) The amount of time allocated to examiners and the productivity requirements of the office as a whole are set (indirectly) by Congress by means of setting the fees per application and office action*. (The USPTO is a fee-funded organization.) The time/productivity requirements haven't changed in nearly half a century.

2) Over 95 percent of patent applications in the computer technology fields are rejected. I don't have current stats for other technologies, but as of a few years ago they were largely comparable.

3) From the point of view of society at large and Congress in particular, there is no problem. The system is functioning as intended and more or less as it has for hundreds of years.

[*The America Invent Act of 2011 transfers some fee setting authority to the USPTO, but no massive restructuring has occurred on that basis.]

"3) From the point of view of society at large and Congress in particular, there is no problem. The system is functioning as intended and more or less as it has for hundreds of years. "

Yeah, you lost your credibility right there. It is NOT functioning as intended: "obvious" patents are being granted right and left. It is NOT functioning as it has for hundreds of years. Software patents and business method patents only became legal relatively recently, accompanied by a flood of abuses.

If you can't see that, you are either a) clueless, b) not close enough to the problem, or c) part of the problem.

Yeah, you lost your credibility right there. It is NOT functioning as intended: "obvious" patents are being granted right and left. It is NOT functioning as it has for hundreds of years. Software patents and business method patents only became legal relatively recently, accompanied by a flood of abuses.

If you can't see that, you are either a) clueless, b) not close enough to the problem, or c) part of the problem.

This isn't about you or me, but about facts. Please refrain from ad hominem attacks.

In any case, I stated that from the point of view of Congress and society-at-large (which voices its concern through electing Congress members), there is no problem. That's self-evident -- if Congress believed there to be a problem, Congress would be doing something about it. See the America Invents Act for what Congress (and the American people) wanted in terms of patent reform.

Additionally, there's no evidence that today's patents are any more "obvious" (which, by the way, has a particular meaning) than those granted in the past. See Van Veen v. United States (1967) and Goodyear Tire v. Ray-o-Vac (1944), which made clear that "simple" inventions that were blatantly "obvious" in hindsight were certainly patent eligible.

If there is a problem with patent trolling/extortion, that should be studied and dealt with on its own merits. Other regions that also allow for very similar patents (Europe, Japan, etc.) do not have nearly the amount of "trolling" that the US experiences. The United States is the most litigious society on earth; perhaps the issue of "trolling" is an outgrowth of that, rather than any flaws within the patent system per se?

I agree with oblib__ and others on the risk here : "this patent has been reviewed by the public and seen no prior art, therefore it is rock solid".

Just an idea ; in the past, French patents where delivered without examination (patented SGDG, without any warranty from government). There were a lot of inconvenience, as anybody could file a stupid patent. But, after all, would it not be a better process to "predeliver" patent with very little or no examination, and fully scrutinize patent by the patent office when it is used in litigation ? At present, the patent office does not do any new examination at time of litigation, it only receives argument from the parties. The main difference with today would be that the patent office could have some kind of patent prosecutor in charge of attacking some aspects of the patent at teh time of litigation. Basically, that would put some additional burden of proof on the side of the inventor at time of litigation, when the issues are clearer.

Basically, it is not possible to examin all patents as if there were a 1bn $ issue at time of issuance. Why not let to the patent office some right to fully reexamin the patent when there is a litigation.

The patent life could then be threefold : (1) before delivery (2) "quickly examined and delivered", but subject to thorough examination if necessary (3)at litigation, clarification of the extent of revendication by the patent office ;

It will probably always be a problem to evaluatie if a software patent is justified and has no prior art.Making the public pay, or the 'inventor' or some other party does not solve this. The system has to change.